Category Archives: Firearms

Q: Can I purchase any of these with just a DUI and sSmple Assault misdemeanor on my state police background check that I ordered by mail?

A: I would have to look at the PA State Police criminal history record, but, I would think not, if either of those offenses was graded as a misdemeanor 2. A prior conviction for a Misdemeanor 2, will disqualify you from possessing a firearm in PA.

Q: There were the three passengers in the vehicle, a firearm was found and no one confessed to it being theirs, but only the passenger was arrested. The driver and the person in the backseat was let go while the passenger was arrested. Is that illegal? (Pittsburgh, PA)

A: It is common for the police to charge all occupants of a motor vehicle if contraband was found in an area of the car in which any one of the occupants could have hidden the contraband. The DA can prosecute the case under a “constructive possession” theory, and even get a conviction. However, the police have the freedom to charge whoever they want. It is not unusual for the police to arrive, talk to several actors or witnesses and decide on the spot, who to charge and who not to charge. In your case, they figure, ok, if nobody will admit to it and make our job more difficult, we will charge them all and they can fight it out in court. Is it fair to the defendant who is charged and is not guilty? No, it is just the way it is. So, to answer your question, yes, the police can charge only one of the vehicle occupants. The good news is that the at trial, person charged can blame it on the other occupants to create reasonable doubt. If there is any doubt as to possession and his or her lawyer is half good, it will be a not guilty verdict.

Q: Someone I know filled out an application to purchase a gun, not thinking the 2 nights they spent in a health facility ten years ago mattered. They were arrested for it a few months later, spent the night in jail, had a hearing scheduled. The attorney wanted this person to agree to paying a $150 fine even though the attorney said the whole thing was ridiculous. There were a bunch of magistrates around during the time the hearing was scheduled for, so this person never showed for the hearing because they felt as though it was a trumped-up charge and was going to be arrested for past unpaid warrants.

A: This person needs a lawyer. As you describe it, they made matters worse by not showing for the hearing. It sounds like the attorney had the case bargained down to a summary offense, which would have been a good result for your friend. Yes, one can be arrested for giving false information on an application to purchase a firearm. People are presumed to know what has happened to them in their past. One should have a vivid memory of spending two nights in a mental health ward. However, we are not all wired alike. I have had some success in getting these charges dismissed in circumstances where the person otherwise has no criminal or mental health history and it is believable that they did not fully understand the legal implications of their own history especially considering the confusing questions on the purchase application form. The definition of “Knowingly” in the PA Crimes Code, does give rise to defendable argument.

Q: Two years-ago I was convicted of a misdemeanor of simple assault attempt and had my firearm confiscated. The police told me I can have my property back but I must file a petition with the courts. (West Mifflin, PA)

A: With the conviction, you may now be ineligible to possess the firearm. I would need to know exactly what grade of offense you were convicted of. I would speak with a criminal defense attorney about a petition to return property. If it is economically worth it to spend the money, perhaps a transfer to a friend eligible to possess a firearm can be arranged through the petition.

Q: Record only shows a juvenile misdemeanor. He was not aware that his juvenile record would count against him. He thought that would be fine by now. He went to buy a rifle and he answered a question wrong. Now he is going to court. What is the prognosis on this? (Pittsburgh, PA)

A: To answer your question the best I can with this limited information, I will assume your son’s juvenile conviction was a misdemeanor 2 or greater, it appears on his criminal history and it is not an offense that can be expunged after he reached age 21. Based on these assumptions, he can be charged with 18 PA. C.S. Sec. 6111, Sale or Transfer of Firearms, a Felony 3. He can also be charged with 18 Pa. C.S. Sec 4904, Unsworn Falsification to Authorities, which is a Misdemeanor 3. I have some luck with these cases in my county based on how poorly written and confusing the question on the “Firearm Transaction Record” is. I suggest he hire a lawyer to investigate his prior offense and to represent him on these charges.

Q: I had a Disorderly Conduct charge 9 years ago. I know it stays on my record, but can I obtain a pistol permit and own a hand gun?

A: A Disorderly Conduct can either be charged as a misdemeanor or a summary. Currently as a misdemeanor, it is graded as a level 3 (M3). I will assume it was graded as such nine years ago. If you either pled guilty or were found guilty of a M3 nine years ago, you should be eligible to possess a firearm in PA. If it was a summary offense you are likewise not barred from possessing a firearm. You should be eligible for an expungement of both.

Q: He has been convicted of burglary, criminal conspiracy, theft by unlawful taking, receiving stolen property felony 2 and felon 3 and lives with his parents who have multiple guns in a safe His mother keeps one in her purse and father keeps one next to his bed. He also regularly smokes weed and recently took up drinking again. Within the last couple months, he has posted three videos to his social media of him shooting a gun. Is it legal for him to live there with the one being accessible to him. He’s about to get some custody back of his kids and have them in this home. (Pittsburgh, PA)

A: If smoking weed and drinking are prohibited by the terms of his parole or probation, he is in violation of parole or probation. It is illegal to smoke marijuana, at least currently. As for the guns, as a convicted felon, he would be prohibited from possessing a gun by PA and Federal firearms statutes.

Q: My husband just received news that he is facing jail time, fine, etc. for an error he made when filling out the PA Handgun purchasing form 4473. He checked “no” on question 11b & 11c asking if he had a felony or a crime of over 1 year sentencing. He misunderstood the question to begin with and the misdemeanor offense in 2000 that triggered this was served as a probation and ARD program. He was told he would have no criminal record by having the ARD program. Not to mention, form 4473 is directly from 922 Brady act from 1993 (or something like that) which is expired since 93 since FBI established NICS system. This is a trap! He is innocent. He did NOT willfully or intentionally lie on the form. Why would he? He knows that they would find out if he has a record either way. There’s no point in lying! He is our family’s sole provider, he can’t go to jail.

A: The form is inherently confusing as very few people have the PA Crimes Code committed to memory when they fill out the form. I have had some success in defending these when the person has no other criminal record and the police are open to or intelligent enough to understand the confusion generated by the question. What I like about your husband’s facts is that if he received ARD, he was not even convicted! Some counties expunge all criminal arrest records after ARD and some counties do not. Perhaps the county (Dauphin) he received his ARD in did not do so and the arrest record still appeared when they ran the background check. I would look at his file in the courthouse to make sure it was an ARD disposition and order his criminal history from the PA State Police. Also, when you get through getting his charges withdrawn, you will need to expunge his old DUI and his new arrest records. (Pittsburgh, PA)

Q: It was a crazy situation from breaking up with my girlfriend who was 15 and I was 19. Her parents had me charged with statutory rape. Sounds terrible I know and it ruined me from then on. I pleaded no contest and had to do one year probation. Never spent any time in jail either and haven’t even had a parking ticket since then. I want to own a gun to protect my wife and children in our own home. No guns for anyone with any kind of record it seems. Is there a way for me to ever own guns to protect what is mine and keep my family safe?

A: To give you a precise answer, I suggest that you order your criminal history from the PA State Police to determine how the grading of this offense appears in criminal databases. My thought is that 16 years ago it was at least a Misdemeanor 2 and additionally, it would be viewed as a sex crime and/or crime of violence which would make you ineligible for expungement

Q: My fiance very stupidly went to buy a shotgun at Walmart and checked the “no” box for having prior felonies. He has prior felonies, including weapons charges. They just called him yesterday and pressing charges for a felony offense of Sale of Transfer of firearms under 18 Pa.C.S.A § 6111(g)(4)(ii) for “knowingly and intentionally” making a background check materially false written statement in connection with the purchase, delivery, or transfer of a firearm. Making a false statement includes completion of the gun application form. The other charge is a misdemeanor offense of Unsworn Falsification to Authorities and he had his arraignment today. His preliminary is going to be on March 15th. What can I expect? I am pretty sure it will go to trial, but will I get lucky and him not get jail time? A: Sometimes I get these cases withdrawn at the Preliminary Hearing where the person is otherwise a good citizen, has one criminal case in their history and it is believable that that they were unaware that the past crime carried a term of incarceration of more than one year. Other times the police officer and/or the DA are not so generous. The wording of the form that one must sign when purchasing a firearm, in my opinion, contains insufficient notice and is confusing to those untrained in the law. However, your fiance is well-aware of his prior four felonies and his actions are more difficult to explain. Does he have brain damage or is he incompetent? Is he illiterate and couldn’t read the form? I say this seriously as mental health and cognitive problems are the plague of many violators of the law. As for him going to jail, with four felony convictions, the sentencing guidelines will call for incarceration. However, due it being a non-violent offense, and the confusion of the ill-written form, I can usually keep people out of jail. You should have a lawyer review the entire case before you give up on it.